In our mobile culture spouses increasingly reside in multiple jurisdictions during the course of a marriage. This presents a conflict-of-laws conundrum both in European Union (EU) countries and the United States: Which law or laws should govern marital property rights if a couple divorces? This article summarizes the majority rule that has evolved in Europe to deal with this problem and compares it to the accepted approaches in the United States. It also evaluates the advantages of each approach and suggests the wisest course for U.S. courts.

The traditional rule accepted throughout most of Europe is that one regime governs the marital rights of spouses, and that this regime should be determined when the spouses marry. The major characteristics of the majority approach are that: (1) an applicable law is chosen at the time of marriage (absent a postnuptial agreement) and (2) that law governs their rights throughout the marriage. This approach is referred to as a system of total immutability, in that a regime is chosen at the time of the marriage and is not changed, even if the parties move to another jurisdiction shortly after the wedding. The benefits of this approach are that the rule is clear, the law applicable to the parties’ rights is known from the beginning of the marriage, and divorce courts need to learn and apply only one jurisdiction’s law.

Any discussion of the marital property rights of mobile spouses under U.S. law needs to distinguish between the law applicable to determine the spouses’ ownership rights in property during an intact marriage and the law applicable to decide property rights if they divorce. During an intact marriage, spouses’ marital property ownership rights in personalty are determined by the law of the marital domicile at the time the property is acquired. It is generally agreed that a spouse’s ownership rights should not be impacted by a move to another state. So, when spouses move from a community-property state to a common-law state or from a common-law state to a community-property state, if an issue relating to property ownership in an intact, ongoing marriage arises in the new state of residence, a court in that state attempts to fashion an ownership interest under its property law that approximates rights that existed regarding the property pursuant to the law of the former domicile.

Although the rules governing ownership rights of mobile spouses in property during an intact marriage are fairly clear in the United States, it is much less clear what law should be applied to divide the parties’ property at divorce if the parties have lived in more than one state during marriage. It has been suggested that property acquired in one jurisdiction should be governed by that state’s divorce law, and acquisitions in another jurisdiction should be governed by that state’s law at divorce. This is a rule of partial mutability; the laws of the new domicile would govern the divorce property division of only that property accumulated after the move. Some U.S. courts have accepted the rule of partial mutability for purposes of dividing property at divorce. If the notion of partial mutability for purposes of divorce property division is found attractive, the jurisdiction would have to decide whether the parties need to remain in the new domicile for a certain minimum time period before the law of the new domicile would govern any of their marital property rights on divorce. United States courts have not added any such requirement. In contrast, the Hague Convention provides that the parties’ rights are governed by the law of the new domicile if: (1) they become citizens of the domicile or (2) if they continuously live there for ten years.

The other approach that has been accepted in the United States is total mutability. Under this approach, all of the spouses’ marital property rights at divorce are to be determined by the law of the jurisdiction where the divorce is granted, regardless of when or where their property was acquired. Under this approach, property accumulated while living elsewhere is divided based on forum law. This approach has the same benefit as total immutability in that the court has to apply the law of only one jurisdiction to resolve the parties’ rights. And, more importantly, the law to be applied is the law of the forum, a set of laws one would hope the court would be familiar with and competent to administer. The system of total mutability is one that applies to the parties’ rights if they migrate to another jurisdiction and then, at some later point, file for divorce. What are the drawbacks of total mutability? At worst, it rewards forum shopping. It may undermine reasonable expectations as well. An additional question that needs to be addressed is what level of contact the parties need to have with the forum before its law would govern their marital rights.

In terms of the courts’ application of modern conflicts-of-law theories, U.S. courts do not agree about how to choose the law that will govern the division of the spouses’ property at divorce. The trend is to apply forum law to divide all of the parties’ property. This occurs as long as the forum has personal jurisdiction over both parties, regardless of when the property was acquired or whether the forum was ever the parties’ marital domicile. This rule is applied regardless of whether the spouses are U.S. citizens or foreign nationals.

The most fruitful approach would be to look to the parties’ last primary common residence as a starting point for deciding on the applicable law. This approach has a number of advantages. First, it requires more than one spouse’s unilateral act of moving to a forum and filing for divorce as a justification for the application of forum law. Second, the rule can be stated so it is relatively clear and predictable. One way of requiring a more significant connection with the state would be to seek the parties’ last common “habitual” residence. The term is construed to require more connection with the state than merely the “last common residence.” “Habitual residence” is now an important concept for purposes of EU divorce jurisdiction, and some recent cases have discussed what this requires.

The author proposes that the parties’ marital property rights at divorce should be governed by the last state where they maintained a primary common residence for a certain specified minimum period, such as two years. This would be fairly clear and would require both parties to have some significant contact with the state before being governed by the law of that state at divorce. In some instances the court would need to apply foreign law. Alternatively, in such instances the court could be receptive to a forum non conveniens motion. The sole exception would be that the forum should not be required to apply the law of the last common residence if that law violates an important policy of the forum.

- Periodicals: Family Advocate, quarterly magazine with three issues that include how-to articles and current trends in family law for lawyers, and a fourth “Client Manual” issue for lawyers and their clients covering aspects of the divorce process; Family Law Quarterly, a scholarly journal that offers an analytical view of family law issues, including “Family Law in the Fifty States.”

- Books and Other Recent Publications: The Family Lawyer’s Guide to Bankruptcy, 2d ed.; The Indian Child Welfare Act Handbook, 2d ed.; The Family Lawyer’s Guide to Stock Options; The Military Divorce Handbook; Assisted Reproductive Technology; How to Build and Manage a Family Law Practice; Creating Effective Parenting Plans; The Divorce Trial Manual.

- CLE and Other Educational Programs: The Trial Advocacy Institute offers an intense learning experience and is the nation’s premier trial training program for family lawyers. Other CLE programming includes teleconferences, spring and fall conferences, and our popular Hot Tips program at the ABA Annual Meeting. Past program materials are available for purchase on our website.

- Member Benefits: Discount on Family Law Section publications and CLE materials; Committees on topics such as adoption, custody, law practice management, and reproductive and genetic technologies; Case Update, a monthly digest of family law case decisions around the nation; monthly eNewsletter.

J. Thomas Oldham is a professor of law at the University of Houston Law School. He may be reached at toldham@central.uh.edu.